PRESSURE’S TURNED UP ON BOP COMPASSIONATE RELEASE

Up to now, the BOP compassionate release program has seemed like the weather: everyone talks about it, but no one does anything about it.

Under 18 USC 3582(c)(1), the BOP director is empowered to recommend the compassionate release of an aged, infirm or sick inmate to his or her sentencing judge. The district court then makes the call whether to release the prisoner or not. It is an open secret that while the BOP constantly wrings its bureaucratic hands over its soaring costs of inmate care, an inmate has perhaps a better chance of being struck by lightning than he or she does being recommended or compassionate release. On average, about 575 applications for compassionate release are filed annually: the number actually granted averages about 24.

Last July, Sen. Richard Shelby (R-Alabama) – chair of the Senate Appropriations Committee Subcommittee on Commerce, Justice, Science and Related Agencies – ordered the BOP to turn over a gold mine of data on the compassionate release program. Sen. Shelby gave the BOP 60 days to deliver the data, but what the BOP provided the Committee has not been revealed.

(Full disclosure: LISA filed an FOIA request with the BOP two months ago to get a copy of what the Committee was given. So far, no response).

Now, a coalition of Families Against Mandatory Minimums (FAMM), American Conservative Union Foundation, Human Rights Watch, National Council of Churches, Law Enforcement Action Partnership, and National Disability Rights Network, have formed The Campaign for Compassionate Release. “It is cruel and senseless to prisoners and families alike to abandon an individual to suffer or die alone in prison, separated from loved ones,” FAMM General Counsel Mary Price said in a press release. “These prisoners are the least dangerous and most expensive to lock up, yet compassionate release often exists in name only. It often fails the people it is intended to help. And we’re fed up.”

While the Campaign will target both federal and state policies, the first stages of the launch focus on reforms to the federal compassionate release program. Last week, the Committee sent a letter to BOP Director Mark Inch, urging him to expand the program’s use. In addition to appealing directly to Inch, FAMM has also released a series of videos highlighting the kinds of cases the BOP either ignores or denies.

THREE UNRELATED STORIES MAY PORTEND CHANGE IN COMPASSIONATE RELEASE

Sometimes, interesting stories come in triplicate.

Story 1: Late last week, the Government Accountability Office reported that the Federal Bureau of Prisons’ cost of providing healthcare to inmates had jumped 30% in the last four years. The BOP now spends over $8,600 per year to meet each inmate’s health needs.

The GAO report found that while the BOP knows how much it is spending on healthcare, it lacks utilization data, “which is data that shows how much it is spending on individual inmate’s health care or how much it is expending on a particular health care service.” A 2015 Dept. of Justice Inspector General’s study contained the unsurprising report that aging inmates cost more to incarcerate due to higher healthcare costs.

At the same time, number of 55-year old and older inmates has increased from 8.4% of the inmate population in 2009 to 12.0% in FY 2016.

Story 2: Under 18 USC 3582(c)(1), the BOP director is empowered to recommend the compassionate release of an aged, infirm or sick inmate to his or her sentencing judge. The district court then makes the call whether to release the prisoner or not. It is an open secret that while the BOP constantly wrings its bureaucratic hands over its soaring costs of inmate care, an inmate has perhaps a better chance of being struck by lightning than he or she does being recommended or compassionate release. On average, about 575 applications for compassionate release are filed annually: the number actually granted averages about 24.

In 2013, the DOJ Inspector General encouraged the BOP to step up its game. Two years later, the IG’s aging inmates study found “aging inmates engage in fewer misconduct incidents while incarcerated and have a lower rate of re-arrest once released.” In 2016, the U.S. Sentencing Commission went so far as to expand eligibility for the program in hopes the BOP would use it more.

The BOP has remained remarkably immune to DOJ’s exhortations and the Sentencing Commission’s gentle prodding. Late last week, Congress stepped into the breach.

In a report accompanying the 2018 appropriations bill, Sen. Richard Shelby (R-Alabama) – chair of the Senate Appropriations Committee Subcommittee on Commerce, Justice, Science and Related Agencies – ordered the BOP to turn over a gold mine of data on the compassionate release program. Sen. Shelby wants to see (1) the steps BOP has taken to implement the IG’s and Sentencing Commission’s suggestions; (2) a detailed explanation as to which recommendations the BOP has not adopted (which we think would be all of them) and why they were rejected; (3) the number of prisoners seeking compassionate release in each of the last five years, how many were granted and how many denied (“categorized by the criteria relied on as grounds” for each decision, as the Report puts it); (4) the amount of time between each request being filed and being acted on; and (4) how many inmates died while waiting for a BOP compassionate release decision .

Sen. Shelby is giving the BOP 60 days to deliver the data.

As of last June, about 35,000 federal prisoners are over the age of 51. More than 10,000 of those inmates are over 60.

Sessions said, “As a military policeman for nearly a quarter of a century and as the head of Army Corrections for the last two years, General Inch is uniquely qualified to lead our federal prison system.”

Inch, who as Provost Marshal General of the Army and Commanding General, United States Army Criminal Investigation Command and Army Corrections Command, was the Army’s top cop, has been a soldier for 35 years. He has professional certification with the American Correctional Association (ACA) and was the first Army officer to earn the Certified Corrections Executive designation with Honor.

Wrap-up: We’re just speculating here, but Inch – who led the Army Corrections Command after the international embarrassment at US-run Abu Ghraib prison in Iraq – is an outsider to the BOP and a man who is used to the chain of command. He may be more likely to follow the directives of Congress and the DOJ, and be open to the guidance of the Sentencing Commission – while at the same time being resistant to the “we’ve-always-done-it-that-way” mentality of the agency he has been tasked to lead.

In short, this could be a pivotal moment for the BOP Director’s exercise of the compassionate release power under 18 USC 3582(c)(1).

Thus far this legislative year, as we’ve noted, there has been a dearth of criminal justice reform legislation introduced in Congress. A report released yesterday by the Brennan Center for Justice at New York University may hint at why.

On the subject of sentence reform, the Report notes that in January 2017, Sen. Charles Grassley (R-Iowa), chair of the Senate Justice Committee, and House Speaker Paul Ryan (R-Wisconsin) committed to reintroduce some version of the failed SRCA. However, the Report says, both Ryan and Grassley “are rumored to be waiting for the administration to announce its position before moving forward.”

Rumors flew in March, when President Trump’s son-in-law and advisor Jared Kushner met with Grassley and Sen. Dick Durbin (D-Illinois) – the top-ranking Democrat on the Committee, to discuss sentencing and reentry legislation. Kushner, whose father did federal time for white-collar offenses, has more reason than most to favor federal sentencing reform, and reports say that he does.

The Brennan Report says, “Trump’s personal positions on such bills are unknown. It remains to be seen whether any advice from Kushner and backing by conservative reform advocates will influence the President. Some conservatives support expanding reentry services, and modest sentencing reductions for low-level offenders. The Trump Administration could take a similar stance, backing modest prison reform in Congress while continuing to pursue aggressive new prosecution strategies.”

Attorney General Jeffrey Sessions

Elsewhere in the Report, the Brennan Center predicts that “recommendations for more punitive immigration, drug, and policing actions” will flow from the Administration over the next few months. It notes that a crime task force established by Attorney General Jeffrey Sessions is scheduled to deliver its first report by July 27. The Center foresees the task force calling for “a rescission of Obama-era memos on prosecutorial discretion, which helped decrease the federal prison population, and diverted low-level drug offenders away from incarceration.”

COMPASSIONATE KISSES

We watched with some glee a year ago when the U.S. Sentencing Commission horse-shedded the BOP over that agency’s chary use of compassionate release. It was fun while it lasted, but it didn’t last very long.

“Compassionate release,” a provision enshrined in 18 USC § 3582(c)(1), was enacted by Congress in the Sentencing Reform Act of 1984. Besides replacing the prior sentencing regime with the Guidelines, the Act strictly limited the ability of federal courts to revisit sentences once they became final (that is, the time for appellate review expired). Parole was eliminated, with sentences to be served fully (with an allowance of about 14% for good conduct in prison).

One safety valve crafted into the Act by Congress was to give courts the ability to modify or terminate sentences if prisoners were able to show “extraordinary and compelling” reasons justifying early release. Congress tasked the Sentencing Commission with the job of identifying the criteria to be used in determining whether a reason was “extraordinary and compelling.” The statute delegated BOP with the task of identifying prisoners who met these criteria. The idea was that the BOP would identify who qualified, and then petition the district court for grant of compassionate release. The district judge would make the final determination.

The entire process was considered by Congress to be an act of grace. Inmates have no right to petition the court directly under 18 USC 3582(c)(1). They may not seek judicial review of a BOP refusal to recommend release. They may not appeal a district court’s denial of compassionate release. This means the power to free a prisoner is placed in the hands of the jailer whose job it is to keep him locked up, who incidentally is represented by the prosecutor – the US Attorney – whose job it is to lock up federal criminal offenders.

So how does the system work? We’ll let the numbers speak. In 2015, out of about 205,000 federal inmates, the BOP found extraordinary and compelling circumstances justifying compassionate release only 62 times. That works out to 0.03% (or about 3 prisoners out of every 10,000). Those odds stink. It’s hard to believe that so few prisoners qualify for compassionate release.

The BOP’s stinginess has drawn fire from the Sentencing Commission. At the April 2016 hearing we noted above, commissioners complained that the BOP had adopted its own definition of “extraordinary and compelling.” The criteria the Commission adopted directed the BOP to confine itself to determining if a prisoner meets the criteria the Sentencing Commission adopted, and – if so – bringing a motion for reduction in sentence to the district court.

BOP’s management of compassionate release is no different than a district judge deciding that she would adopt her own definition of “career offender,” no matter what the Sentencing Commission might say in Chapter 4B of the Guidelines.

In an article published this week by Learn Liberty, Mary Price – general counsel to Families Against Mandatory Minimums – cited cases where even the most slam-dunk compassionate release cases took over a year for the BOP to process. She noted that the BOP was hurting itself as well as the affected inmates: compassionate release of elderly and infirm inmates makes economic as well as social sense, and saves the BOP from caring for the most expensive and least dangerous of its inmates.

Ms. Price wrote that

if the BOP is unable or unwilling to treat the compassionate release program as Congress intended, Congress should take steps to ensure that prisoners denied or neglected by the BOP nonetheless get their day in court. Congress can do so by giving prisoners the right to appeal a BOP denial to court or to seek a decision from the BOP in cases… in which delays stretch out over months or even years. Such a right to an appeal will restore to the courts the authority that the BOP has usurped: to determine whether a prisoner meets compassionate release criteria and if so, whether he deserves to be released.

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“I agree that the sentence is not substantively unreasonable; but I believe the result to be close to absurd." ~~~ Judge Guido Calabresi, concurring, United States v. Jones, Case No. 15-1518-cr (2nd Cir., Oct. 5, 2017).